Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent is, and has been at all times material hereto, a certified building contractor, a registered mechanical contractor and a certified air conditioning contractor in the state of Florida having been issued license numbers CB-CA09793, RM-0031246 and CA-C024348, respectively. At all times material hereto, Respondent's building contractor and air conditioning contractor licenses qualified George E. Bonsino and Associates, Inc., Jacksonville, Florida. In February 1984, Respondent contracted with Carl and Patricia Powers of 4530 Victor Street, Jacksonville, Florida for the construction of a room addition. The contract was presented to the Powers by Peter Stamires. Mr. Stamires was, at the time, acting as sales manager for George E. Longino and Associates, Inc. The contract price was approximately $13,000.00 and construction of the Powers' room addition was estimated to be completed by March 30, 1984. On March 20, 1984 Respondent received from Carl and Patricia Powers a payment of $6,850.00 on the contract. On May 4, 1984 Respondent received from Carl and Patricia Powers an additional payment of $5,000.00 on the contract. The contract called for a "dry-in room" only, i.e., the room was to be put to a stage where water would not penetrate it. The contract also included: (1) covering the existing asbestos shingles with a cut brick and stone veneer; (2) the installation of aluminum windows; (3) the installation of aluminum gables and eaves; (4) re-roofing the entire home; and (5) the installation of overhead lights, light switches and electrical outlets. Respondent's contract with the Powers contemplated that electrical work would be done, but did not include any plumbing. Respondent sub-contracted the Powers' project to two (2) individuals, Mr. Walker and Mr. Todd. Respondent did not know what type of license Mr. Walker or Mr. Todd held and was never shown a license by either individual. Mr. Walker agreed to obtain permits for the Powers' project, to submit building plans and specifications, and to request the mandatory building inspections. Neither the Respondent nor the sub-contractors obtained a City of Jacksonville building permit prior to commencing construction of the Powers' room addition. Neither Respondent nor the sub-contractors submitted building plans and specifications for approval by the, City of Jacksonville Building Department prior to commencing construction at the Powers' residence as required. Neither Respondent nor the sub-contractors requested the City of Jacksonville Building Department to perform any type of building inspections during the process of construction, as required. On June 11, 1984 Respondent obtained building permit no. 7048 from the City of Jacksonville Building and Zoning Inspection Division for the Powers' project. Shortly after construction commenced, the Powers became concerned with the quality of work being performed. Respondent, while at the project site near the end of March, told Mr. Powers that a building permit had been obtained for the project. However, at that time, no building permit had been obtained. Mr. Theron Brannan, a building inspector for the City of Jacksonville, became involved with the Powers' case when Mrs. Powers called in May 1984 and complained about ;he work being performed by Respondent. Mr. Brannan checked and found that no permit had been issued. He then went out and inspected the construction site. Mr. Brannan found that the walls were approximately 3 or 4 inches out of alignment and that the floor was spongy and needed repair. Major work would have been required to straighten the walls. In Mr. Brannan's opinion, the work was well below average and was of very poor quality. Electrical and plumbing work was performed at the Powers' project site. Ten (10) electrical outlets, six (6) overhead lights and six (6) light switches were installed. The electrical work also included a 220 volt outlet for a clothes dryer. Mrs. Powers is a housewife and was present during the time the electrical work was performed. The individual performing the electrical work told Ms. Powers that he worked for Respondent and was being paid on an hourly basis. The plumbing work performed at the Powers' project included: (1) installation of hot and cold water lines for the bathroom sink, which were tied into the existing water supply; (2) a water line to the toilet, and (3) a drain pipe from the toilet to the existing septic tank. The individual performing the plumbing work told Ms. Powers that he worked for Respondent on an hourly basis and that he was a licensed plumber. When Respondent was advised of the problems at the construction site, he immediately obtained the necessary permits and offered to correct some of the building problems. The Powers refused Respondent's offer to correct the problems because they were concerned as to whether the remedial measures proposed by Respondent were actually feasible. From an appearance standpoint, the measures contemplated by Respondent were not feasible. In April 1984, Respondent contracted with Glenn and Debora Blanchard of 521 Astral Avenue, Jacksonville, Florida for the construction of a room addition. The total contract price was $6,780.00. Respondent received $3,390.00 as a down payment on the contract; the balance was due upon completion. The contract called for the construction of a room addition between the existing home and the garage. The room addition was to be completed to the "dry-in" stage only. The contract also included re-roofing the entire residence. The Respondent sub- contracted the Blanchard project to a person by the name of A. Rhoden. Mr. Rhoden agreed to obtain all permits, draw all plans and specifications and obtain all required inspections with the exception of the roofing aspects of the project. Neither Respondent nor the sub-contractor obtained a building permit prior to commencing construction at the Blanchard's residence as required. Neither Respondent nor the sub-contractor submitted building plans and specifications to the City of Jacksonville Building Department prior to commencing construction. Neither Respondent nor the sub-contractor requested the building department perform any type of building inspections during the process of construction In May 1984, Ms. Blanchard became concerned because the concrete slab appeared uneven and had developed a crack. She contacted the City of Jacksonville Building Department because she was concerned with the quality of the work being performed. On May 30, 1984 the City of Jacksonville Building Department and Zoning Inspection Division issued a stop work order on construction work being performed at the Blanchard residence. The Notice of Violation cited the failure to submit building plans and failure to obtain a building permit prior to commencing construction at the project site. On June 11, 1984 Respondent obtained building permit no. 7047 from the City of Jacksonville Building and Zoning Inspection Division for the construction work at the Blanchard residence. Such Permit was obtained after commencement of the project. Shortly after commencement of construction, Respondent met with Mr. Blanchard at the project site to discuss a few changes to the original plans. In late April, 1984, Respondent told Mr. Blanchard that a building permit had been obtained, when in fact, no building permit had been obtained. Respondent told Mr. Blanchard that the permit needed to be kept at his office. The construction of the room addition included the forming and pouring of a monolithic slab. The City building department inspects the excavation of the slab prior to the pouring of concrete. A tie-beam inspection is required after the foundation is poured and the masonry walls are erected. Neither inspection was performed nor requested. The Respondent told Mrs. Blanchard that two (2) inspectors had inspected the property, when in fact no inspectors had inspected the property because no building permit had been applied for at the time Respondent made such statement. Unless a building permit is obtained, the City is generally not aware that a construction project is being undertaken and, therefore, does not conduct building inspections. Lewis D. Franks, an expert in residential construction inspected the work done at the Blanchard's home on behalf of the City of Jacksonville Building Department. Several problems existed in regard to the Blanchard project. There was a large crack in the concrete which resulted from the settling of the southeast corner of the building. The settling of the southeast corner resulted from either an inadequate footing or none at all. Also, the roof rafters were not centered properly and were about fourteen (14) feet off. The Blanchard project was of very poor workmanship, the construction was not structurally sound, and the project failed in several respects to meet requirements of the City of Jacksonville Building Code. When Respondent found out that no permit had been obtained he promptly drew up plans and specifications and obtained a permit from the City of Jacksonville Building Department. The Blanchards, thereafter, refused to allow Respondent to continue working on the project. The roofing portion of the Blanchard project was sub- contracted by Respondent to Richard Davenport. Mr. Davenport holds a state license as a roofing contractor and a local occupational license. Mr. Davenport's sub-contract called for him to tear off the existing roof, carry off the rotten wood and put on a new roof. Respondent was not satisfied with the roofing job done by Mr. Davenport and failed to pay him for such roofing job. Thereafter, Mr. Davenport demanded payment from the Blanchards but they also refused to pay him. Mr. Davenport filed a Claim of Lien against the Blanchards' property. However, the Blanchards hired an attorney and the Claim of Lien was dismissed. Respondent's failure to pay Mr. Davenport was based on his good faith belief that the roofing job was not done in a satisfactory manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to supervise the construction activities of the company which he qualified and incompetence in the practice of contracting as alleged in Count One of the Amended Administrative Complaint. It is further recommended that all other alleged violations contained in Count One of the Amended Administrative Complaint be dismissed. That Respondent be found guilty of failing to supervise the construction activities of the company which he qualified and incompetence in the practice of contracting as alleged in Count Two of the Amended Administrative Complaint. It is further recommended that all other alleged violations contained in Count Two of the Amended Administrative Complaint be dismissed. That Count Three of the Amended Administrative Complaint be dismissed, the Petitioner failing to introduce any evidence in regard to Count Three and requesting that it be dismissed. It is further RECOMMENDED that Respondent's building contractor's license be suspended for a period of 6 months and that an administrative fine in the amount of $500.00 be assessed. DONE and ORDERED this 30th day of October, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of October, 1985. * Count Three of the Administrative Complaint was voluntarily dismissed by Petitioner and, in any event, was not established by the evidence. COPIES FURNISHED: Douglas Beason, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 M. Carolyn Givens 8741 Free Avenue Jacksonville, Florida 32211 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan Executive Director Department of Professional Regulation O. Box 2 Jacksonville, Florida 32202 APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), the following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact: Paragraph Ruling (general finding) Accepted; see paragraph 1, R.O. Accepted; see paragraph 2, R.O. (DPR Case #0049083) Accepted; see paragraph 3, R.O. Accepted; see paragraph 3, R.O. Accepted; see paragraphs 5, 6 and 7, R.O. Partially accepted; see paragraphs 4 & 11 Petitioner's proposed finding "the individual performing the electrical work was Respondent's employee and was being paid on an hourly basis" is rejected on the basis that the evidence presented on that issue consisted of uncorroborated hearsay which did not fit within any recognized exception to the hearsay rule. Partially accepted; see paragraphs 4, 7, 11 and 12, R.O. Petitioner's finding that "the plumbing work was performed by Respondent's employee" is rejected on the basis that the evidence presented on that issue consisted of uncorroborated hearsay. Accepted; see paragraphs 9 and 10, R.O. Accepted; see paragraph 10, R.O. Accepted; see paragraph 13, R.O. Accepted; see paragraph 13, R.O. (DPR Case #0049788) Accepted; see paragraph 14, R.O. Accepted; see paragraphs 15, 16, 17 and 23, R.O. Accepted; see paragraphs 17 and 22, R.O. Partially accepted; see paragraph 17, R.O. Facts not covered by paragraph 17are rejected as irrelevant and immaterial. Accepted; see paragraphs 18 and 19, R.O. Partially accepted; see paragraphs 21 and 23, R.O. Facts not covered therein are rejected as irrelevant and immaterial. Accepted; see paragraph 24, R.O. Accepted; see paragraph 24, R.O. Respondent's Proposed Findings of Fact Finding: Ruling: Accepted; see paragraph 3, R.O. Accepted; see paragraphs 4 and 5, R.O. Accepted; see paragraphs 5, 6, 7 and 13. Partially accepted; see paragraph 13. Findings not covered therein are rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Accepted; see paragraph 13, R.O. Rejected as a conclusion of law. Accepted; see paragraph 14, R.O. Respondents claim that the contract called for the construction of a dry-in addition and not a "room addition" is considered immaterial. Accepted; see paragraph 14, R.O. Accepted; see paragraph 26, R.O. Accepted; see paragraph 25, R.O. Accepted; see paragraph 25, R.O. Rejected as irrelevant. Accepted; see paragraph 25, R.O. Rejected as a conclusion of law. ================================================================ =
Findings Of Fact At all times relevant hereto Jonas C. Merricks, Respondent, was licensed by the Construction Industry Licensing Board, Petitioner, as a residential building contractor. In May 1981 Respondent was approached by John Oden regarding a building permit to add a room to the residence of Ms. Betty J. Wilson. Respondent testified he went to see Ms. Wilson to discuss the permit before pulling the permit; however, Ms. Wilson testified she did not see Respondent until after the word started. Regardless of the correct version Respondent pulled the permit for the construction knowing that he was not going to do the work. On May 23, 1981 Ms. Wilson entered into a contract with John Oden to construct an additional room on her residence. This contract was modified on May 26, 1981 to enlarge the room two feet and it is this contract (Exhibit 3), upon which the work was done. The contract made no mention of Respondent or of J & J Building Company which is owned by Respondent. Under the terms of the contract Ms. Wilson was to pay Oden one-third when walls were up, one-third when the roof was on and the final one-third when the job was completed. During the course of the construction Respondent appeared on the site a few times and straightened out existing problems. Ms. Wilson made all of her payments to Oden in accordance with the contract. However, she made the final payment before the work was completed. Her attempts to get Oden to satisfactorily complete the job were unsuccessful and Ms. Wilson complained to the Bureau of Consumer Affairs who referred her complaint to the Construction Industry Licensing Board which investigated and filed the complaint here under consideration. No evidence was submitted that Respondent pulled permits for work done by J & J Building Company. Evidence was presented that J & J Building Company is not licensed by petitioner. Respondent testified that he pulled the permit as a favor to Ms. Wilson and not for Oden, and that he did not know Oden had contracted with Ms. Wilson to do this job. However, Respondent did know that Oden was going to build the addition for Ms. Wilson; and, in his affidavit, Exhibit 5, Respondent acknowledged he had "helped out" Oden several times, that he was paid by Oden for work Respondent did on the premises, that payment for this work was made out to J & J Building Company, and that he supervised the work when he was on the premises.
The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ramiro Palma, be found guilty as charged in the Administrative Complaint dated August 31, 1981. It is further RECOMMENDED that Respondent's registered building contractor's license be suspended for one year after the date of the final order entered in this proceeding and that Respondent pay a $1000 administrative fine. DONE and ENTERED this 3rd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
